Cheung Pui Suen and Another v. Chung Kwong Lam and Another
Read the full judgment text of DCCJ 8183/1980 on BabelCite. This District Court judgment.
1. In this action the plaintiffs are the landlords of the domestic suit premises. They claim possession of the suit premises pursuant to Section 53(2)(b) of the Landlord & Tenant (consolidation) Ordinance, Cap. 7 as a residence for the sons of the first named plaintiff. These persons are not, however, the sons of the second named plaintiff.
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DCCJ008183/1980 Landlord and Tenant - joint owners - domestic premises required by joint owners as a residence for the sons of one only of the joint owners - whether jurisdiction to make order - Landlord and Tenant (Consolidation) Ordinance, Cap. 7. S. 53(2)(b). IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 8183 OF 1980 -----------------
----------------- Coram: H.H. Judge Cruden in Court. Date of Judgment: 16th July, 1981. ----------------- JUDGMENT ----------------- 1. In this action the plaintiffs are the landlords of the domestic suit premises. They claim possession of the suit premises pursuant to Section 53(2)(b) of the Landlord & Tenant (consolidation) Ordinance, Cap. 7 as a residence for the sons of the first named plaintiff. These persons are not, however, the sons of the second named plaintiff. 2. Counsel for the defendants has made the preliminary objection that the plaintiffs are unable to recover possession under Section 53(2)(b) because, on their pleadings, possession is sought for the sons of only one of them. So this case raises yet again the question whether the word "landlord" in Section 53(2)(b) where there are more than one, is to be construed jointly or jointly and severally. I have already held in Hsia Jone Shu and Hsia Yu Liang Patrick v. Allied International Insurance Ltd. formerly known as Intervest Insurance Co. Ltd. V.C.J. No. 7787 of 1980 that where there are joint landlords, they may recover possession where they reasonably require the suit premises as a residence for any one or more of them. It is not necessary for all the joint landlords to reside in the recovered premises. The same principle applies to their statutory relatives. 3. In coming to that conclusion I did not follow two earlier Hong Kong decisions Sun Pin and Anor. v. R.P. Greenwood (1964) D.C.L.R. 246 and Wong King Fun & Anor. v. Cheng Hon Tao (1971) D.C.L.R. 46. Those two decisions reluctantly came to the conclusion that they were obliged to adopt the narrower interpretation of the word "landlords" and that it was therefore necessary for both joint landlords to seek to reside in the suit premises. Those two decisions were based on the English Court of Appeal decision of McIntyre v. Hardcastle (1948) 2 K.B. 82. 4. In my earlier decision, I held that one of the reasons why in my view that interpretation was wrong, followed from the House of Lords decision in Tilling v. Whiteman (1980) A.C.1. The House of Lords considered McIntyre v. Hardcastle and while on the facts they were able merely to distinguish that Court of Appeal decision, they largely discredited its reasoning. However, since my earlier decision, I have now had the opportunity to consider two recent Hong Kong judgments on the same point, namely Hau Hing v. Kwok Kam Yuen V.C.J. No. 4106 of 1980 and LEE Pui-wah and Lau Koon Wai v. Lam Wing Chung V.C.J. No. 6538 of 1980 which have been cited to me by Counsel for the defendants. 5. Both of these recent judgments adopted the narrower interpretation and held that it was necessary for both joint landlords to reside in the suit premises. Both judgments consider that McIntyre v. Hardcastle still governs the interpretation of the word "landlords" in our Section 53(2)(b). Further, both judgments cite Tilling v. Whiteman in support of their conclusions. 6. In this strange situation it is obviously desirable that I should reconsider the authorities and my earlier decision. It is true that our Section 53(2)(b) more closely resembles what in England was Case 8 which was the statutory provision considered in McIntyre v. Hardcastle whereas Tilling v. Whiteman was concerned with what was Case 10. It was for this reason that the House of Lords were able to distinguish McIntyre v. Hardcastle and did not have to decide whether to apply or overrule that decision. 7. However, Hau Hing v. Kwok Kam Yuen and Lee Pui Wah and Lau Koon Wai v. Lam Wing Chung proceed on the basis that the House of Lords in Tilling v. Whiteman endorsed the reasoning in McIntyre v. Hardcastle. If this were so, then my earlier decision was wrong. I was earlier of the view that the House of Lords judgment had the opposite effect and in fact largely discredited McIntyre v. Hardcastle. After further consideration I remain firmly of the same view. In view of the opposing view recently set forth in the other two District Court judgments I have referred to, it is necessary to examine precisely how the House of Lords approached McIntyre v. Hardcastle. 8. The correctness of the narrow interpretation of joint landlords by the Court of Appeal in McIntyre v. Hardcastle was questioned in Tilling v. Whiteman on at least five different occasions:-
9. Clearly the House of Lords was not attracted to the reasoning of the Court of Appeal in McIntyre v. Hardcastle and, unlike the Court of Appeal below, refused to apply that decision to the facts of Tilling v. Whiteman. However, as the majority in the Court of Appeal had relied on the reasoning in McIntyre v. Hardcastle it was necessary for the House of Lords to dispose of that decision before overruling the Court of Appeal. Technically they did so by distinguishing McIntyre v. Hardcastle. In the process, however, they refused to elevate the reasoning of McIntyre v. Hardcastle into any general principle. The cumulative effect of the House of Lords references to McIntyre v. Hardcastle is that the authority of that decision, while not at this stage overruled, is at best doubtful. 10. Certainly the House of Lords did not approve McIntyre v. Hardcastle The suggestions in Hau Hing v. Kwok Kam Yuen and Lee Pui Wah and Lau Koon Wai v. Lam Wing Chung to the contrary are, with respect, not ones with which I can agree. 11. In considering the cases, it is also helpful to examine the three relevant statutory provisions some of which are referred to in the judgments, I have mentioned. The enactment of the Rent Act of 1977 has resulted in what were Cases 8 and 10 under the Rent Act 1968 being now Cases 9 and 11 in Schedule 15 of the new Act. Hong Kong's Section 53(2)(b):
England's Case 9:
England's Case 11:
(my underlinings) 12. These three different provisions empower landlords principal tenants and owner-occupiers to bring proceedings for possession. Where they elect to do so, they become plaintiffs in the appropriate actions. The element common to all these three provisions is that the plaintiffs may only seek to recover possession of the suit premises for occupation as a residence for themselves or the statutory relatives prescribed in each case. So in each of the three cases there is the same common factor of the plaintiff requiring the premises as a residence for himself or his statutory relatives. 13. I am well satisfied that the provisions of all three of these statutory provisions are sufficiently similar to invoke the principle enunciated by the Privy Council in de Lasala v. de Lasala (1979) 2 All E.R. 1146. For our Section 53(2)(b) is sufficiently similar to the English legislation for the House of Lords interpretation of the English legislation to be applied in Hong Kong. To the extent that there is any conflict between the House of Lords decision in Tilling v. Whiteman and the Court of Appeal in McIntyre v. Hardcastle then the House of Lords judgment applies. Strictly, of course, there is no conflict for technically they are distinguishable. For I accept that Tilling v. Whiteman does not technically overrule McIntyre v. Hardcastle nor the two Hong Kong decisions first referred to which, with reluctance, applied McIntyre v. Hardcastle. That is why I was careful in Hsia Jone Shu and Hsia Yu Liang Patrick v. Allied International Insurance Ltd. formerly known as Intervest Insurance Co. Ltd. to state that the House of Lords decision merely had the "effect" of overruling those decisions for strictly it does not do so. However, even accepting that McIntyre v. Hardcastle was merely disposed of by being distinguished; even accepting that notwithstanding the basic similarity of all three statutory provisions, Case 9 is closer to our statutory provision than Case 11; I consider that the earlier force of McIntyre v. Hardcastle is now too eroded to continue to be applied in Hong Kong. Further, while I recognise that all three statutory provisions are not identical their material provisions are sufficiently similar to make it desirable to approach their meaning on one common basis. It would be wrong to over emphasise the differences in order to whittle down the application of the appropriate general principle. It would equally be undesirable to deal with these provisions piecemeal. For this would increase rather than reduce the unfortunate technicalities of this type of legislation of the very kind which Eveleigh L.J. was expressly anxious to discourage. 14. I am therefore satisfied, as a matter of law, that McIntyre v. Hardcastle is now so discredited - not only by the House of Lords but also by the Court of Appeal in Lloyd v. Sadler (1978) 2 All E.R. 529 citing Howson v. Buxton (1928) 97 L.J.K.B. 749 - that it is no longer an authority from which any general principle can safely be drawn to apply to the law in Hong Kong. That the Court of Appeal in 1948 came to the narrow conclusion it did in McIntyre v. Hardcastle is not surprising when the strict formalism of that era, which has recently been analysed in depth by Professor Stevens in "Law and Politics - The House of Lords as a Judicial Body 1800 - 1976", is considered. However, since then the English courts have gone on to develope a much more purposive approach to statutory interpretation. An example of this approach in tenancy legislation is to be found in the wide interpretation given in 1978 to joint tenancies in Lloyd v. Sadler. It is unfortunate that the earlier powerful judgment on this same issue of Scrutton L.J. in Howson v. Buxton was not cited to the Court of Appeal in McIntyre v. Hardcastle. The same purposive approach was adopted by the House of Lords in 1980 in Tilling v. Whiteman which is concerned not merely with Case 10 but also with important general principles applicable in the instant case. These 1978 and 1980 appellate decisions reflect the current proper approach to joint tenancies in this type of legislation. Against this background McIntyre v. Hardcastle, at most, lingers on as a surviving but discredited remnant of an earlier but now generally rejected approach. 15. I therefore reject the defendants preliminary objection and rule that it is open to the plaintiffs, as a matter of law, to claim possession of the suit premises under Section 53(2)(b), as a residence for the sons of one only of them. 16. In affirming the view that joint landlords may so recover suit premises, I am also pleased that the encouragement to commit perjury which McIntyre v. Hardcastle created, is now removed. In several cases, the suit premises have been owned by father and son but possession has been sought for the residence of either the father or son only. Given the pressure on housing in Hong Kong and the concept of the extended family which is still strong, if the father or son who did not propose to reside in the suit premises gave untrue evidence that he did intend to reside with the other joint owner, even a suspicious Court would often find it difficult to reject such evidence. Further the McIntyre v. Hardcastle interpretation would encourage the joint owner not intending to reside in the suit premises to transfer his registered interest to the other joint owner but to preserve an equitable interest by appropriate collateral declarations of trust or the like. There would be other conveyancing devices that could be employed to disguise the true position from the Court to enable one joint owner to succeed even under McIntyre v. Hardcastle. Tilling v. Whiteman has put an end to these temptations. 17. Having ruled against the defendants on their preliminary objection they have now at this stage applied for leave to appeal. I am informed that in view of the large number of witnesses to be called on the substantial issue, this is the better course to be followed rather than for the Court first to proceed to hear the evidence. In these circumstances, I am prepared to grant leave to appeal against my preliminary ruling at this stage unconditionally. The costs of today will be costs in the cause. There will be a certificate for Counsel. DATED this 16th day of July, 1981.
Representation: Mr. A. Lam of F. Zimmern & Co. for plaintiffs. Mr. A. Fung instructed by H.H. Lau & Co. for defendant. |